Re L (Minors) (Document: Non-Party Disclosure)
| Jurisdiction | England & Wales |
| Judgment Date | 1995 |
| Date | 1995 |
| Year | 1995 |
| Court | Family Division |
BRACEWELL, J
Disclosure – whether court has jurisdiction to disclose documents filed in Children Act proceedings – whether disclosure may be made to a non-party – procedure to be adopted for application – effect of legal professional privilege upon balancing exercise.
Procedure – application for disclosure of documents filed in Children Act case – procedure for application.
Three separate applications were made by the police authority in October and November 1993 for the purpose of obtaining copies of medical reports in respect of a child subject to an interim care order. The applications were made for the purpose of facilitating the investigation of criminal offences. A child had been admitted to hospital having consumed a quantity of methadone. The parents were registered heroin addicts and had been prescribed methadone during the course of their treatment. The mother had alleged that the ingestion of methadone by the child was accidental. The police authority sought the disclosure of a report which had been filed with the court by a consultant chemical pathologist, which was relevant to the amount of methadone ingested, the time at which it was taken and whether the child's condition was consistent with the explanations offered by the mother. The application for disclosure was supported by the local authority and the guardian ad litem, but was opposed by the parents of the two children concerned in the Children Act proceedings.
Held – granting the application: A number of questions fell to be determined: (1) Did the court have jurisdiction within proceedings under the Children Act 1989 to order the disclosure of documents filed in those proceedings? (2) If yes, did that power extend to persons who, or authorities which were not parties to the proceedings, and if so, what was the appropriate procedure? (3) Once that procedure had been determined, to what extent would the balancing exercise between the welfare of the child and public interest be affected by legal and professional privilege attaching to the document to be disclosed. As to the first question the court had jurisdiction to order the disclosure of documents filed. As to the second question there was, however, no reported decision regarding disclosure to a person who was not a party in Children Act proceedings. Prior to the 1989 Act, there was a well-established procedure under which a non-party could seek disclosure of confidential and/or privileged material which was before the court in a dispute relating to children. When enacting the Children Act, Parliament must be deemed to have been aware of the existing practice and procedure in this regard. Section 98 of the 1989 Act clearly contemplated the use of evidential material filed in Children Act proceedings in criminal
proceedings. The section would be otiose if the court could not permit documents to be disclosed to a third person. In an application to be joined for a specific and limited purpose, the applicant need not satisfy principles such as those set out in s 10(9), which were relevant only to applications for an order under s 8. There was nothing in the Family Proceedings Rules 1991 which expressly or impliedly prevented the police authority from being joined as a party in order to apply for disclosure. Although the police authority could therefore be granted party status, this was not necessary for the purpose of this application. Additionally, while the High Court retained the inherent jurisdiction where necessary, it was not necessary to invoke it in this case. Provided that an application in writing was filed by the applicant, the court had jurisdiction to grant it. In determining such an application, the court must consider the third question which was the balancing exercise set out in Re D[1992] 1 FCR 297. The fact that legal professional privilege attached to the document was an important factor in determining the balancing exercise. The application in question did not relate to the upbringing of the child and therefore was not governed by s 1 of the Act. Although welfare had to be weighed, it could be displaced in some circumstances. Although the interests of the children were an important factor, there was the competing claim of public interest in the due administration of justice which required police forces to make informed decisions before deciding whether to prosecute. The document had an important practical significance and was also a document which could be used as a basis for an interview of the mother under the Police and Criminal Evidence Act 1984. As indicated by the guardian ad litem, an informed decision by the police, which might result in a prosecution or a decision not to prosecute, and/or in conviction or acquittal, was very significant in terms of planning for the children's future. It was therefore appropriate to order that the report should be disclosed to the police authority.
Statutory provisions referred to:Administration of Justice Act 1960, s 12.
Children Act 1989, ss 1, 8, 10(9), 31, 98 and Sch 13.
CCR Ord 13.
Family Proceedings Rules 1991, rr 4.23 and 4.7.
Police and Criminal Evidence Act 1984.
RSC 1965 Ord 32.
Cases referred to in judgment:A (Wardship: Disclosure), Re [1991] FCR 844.
A v A and Newham London Borough Council[1993] 1 FCR 870.
A v Liverpool City Council [1982] AC 363; [1981] 2 WLR 948; [1981] 2 All ER 385.
Adoption Application (Disclosure of Information) [1990] FCR 538.
Air Canada v Secretary of State for Trade (No 2) [1983] 2 AC 394; [1983] 2 WLR 494; [1983] 1 All ER 910.
B (Children in Care: Contact), Re[1993] 1 FCR 363; [1993] Fam 301; [1993] 3 WLR 63; [1993] 3 All ER 524.
B v M (Welfare Report: Disclosure) [1990] FCR 581; sub nom Brown v Mathews [1990] Ch 662; [1990] 2 All ER 153.
B (Minors) (Disclosure of Medical Reports), Re[1993] 2 FCR 241; sub nom Barking and Dagenham London Borough Council v O [1993] Fam 205; [1993] 3 WLR 493.
Cuaston v Mann Egerton (Johnson Ltd) [1974] 1 WLR 162.
D (Minors) (Wardship: Disclosure), Re[1992] 1 FCR 297.
Douihech v Findlay [1990] 1 WLR 269; [1990] 3 All ER 118.
F (A Minor) (Publication of Information), Re [1977] Fam 58; [1976] 3 WLR 307; [1976] 3 All ER 274.
F and Others (Wards: Disclosure of Material), Re [1989] FCR 752; [1989] Fam 18; [1988] 3 WLR 818.
Francis v Francis (A Firm) [1988] 3 All ER 775.
G v Kirklees Metropolitan Borough Council[1993] 1 FCR 357.
H (A Minor) (Wardship), Re [1986] 1 FLR 132.
Harman v Secretary of State for the Home Department [1983] 1 AC 280; [1982] 2 WLR 338; [1982] 1 All ER 532.
JR v Merton London Borough[1992] 2 FCR 174; sub nom Re A and W (Minors) (Residence Order: Leave to Apply) [1992] 2 FLR 154.
K (Minors) (Care Proceedings: Disclosure), Re[1994] 2 FCR 805.
M (A Minor) (Social Work Records: Disclosure), Re [1990] FCR 485.
M (A Minor) (Wardship Documents: Disclosure), Re[1993] 1 FCR 476.
Oxfordshire County Council v M[1994] 1 FCR 753.
Practice Direction [1971] 1 WLR 443; [1972] 1 All ER 1056.
Practice Note: Adoption – Disclosure – Attorney-General [1990] 1 All ER 640.
R (Minors) (Legal Professional Privilege) (Disclosure of Material), Re[1994] 1 FCR 225.
R (Ward: Witness), Re [1991] FCR 642; sub nom Re R (A Minor) (Wardship: Criminal Proceedings) [1991] Fam 56; [1991] 2 WLR 912; [1991] 2 All ER 193.
R (MJ) (A Minor) (Publication of Transcript), Re [1975] Fam 89; [1975] 1 WLR 978; [1975] 2 All ER 749.
R v Bloomsbury and Marylebone County Court, ex parte Villerwest Ltd [1976] 1 WLR 362; [1976] 1 All ER 897.
R v K (DT) (Evidence) [1993] 2 FLR 181.
S (Minors) (Wardship: Police Investigation), Re [1987] Fam 199...
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